Gujarat High Court
Maniben Bhagubhai Patel vs M/S South Eastern Roadways on 12 August, 2024
NEUTRAL CITATION
C/FA/1290/2009 JUDGMENT DATED: 12/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1290 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MANIBEN BHAGUBHAI PATEL & ORS.
Versus
M/S SOUTH EASTERN ROADWAYS & ORS.
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Appearance:
MR. YOGENDRA THAKORE(3975) for the Appellant(s) No. 1,2,3,4
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 2
MR NAGESH C SOOD(1928) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 12/08/2024
ORAL JUDGMENT
1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant/s - original claimant/s - legal heirs of the deceased - Bhaghubhai, being aggrieved and dissatisfied Page 1 of 11 Downloaded on : Wed Aug 14 20:55:31 IST 2024 NEUTRAL CITATION C/FA/1290/2009 JUDGMENT DATED: 12/08/2024 undefined with the judgment and award dated 19.07.2007 passed by the Motor Accident Claims Tribunal (Aux.), Mehsana in Motor Accident Claim Petition No.919 of 2003, by which the Tribunal has awarded compensation of Rs.1,31,000/- with 7.5% per annum interest to the claimant/s, holding liability to the container and Maruti car to the extent 70:30 respectively.
2. Brief facts of the case are as under:
2.1 The deceased, Bhaghubhai, on 27/6/2003 was going in a Maruti car bearing registration No. G.J.5.PP.9927 from Gandhinagar to Surat with 2 persons and when the deceased had reached near Anand Highway cross-roads at that time, the container of the respondent No.1 had came with a full speed on a wrong side and rashly and negligently dashed with the maruti car and thereafter the container get turtled and fall on the maruti car. Thereafter, the other two persons had received injuries and the deceased had also received the serious injuries and during the course of treatment, the husband of the deceased died. Hence, claim petition has been preferred.
2.2 Therefore, the legal heirs of the deceased have filed claim petition seeking compensation of Rs.14 lakhs with cost and interest for unnatural and untimely death against the present respondents before the Tribunal.
2.3 After considering the documentary as well as oral evidence and submissions made at the bar, the Tribunal has partly allowed the claim petition by awarding compensation as noted above.Page 2 of 11 Downloaded on : Wed Aug 14 20:55:31 IST 2024
NEUTRAL CITATION C/FA/1290/2009 JUDGMENT DATED: 12/08/2024 undefined 2.4 Being aggrieved and dissatisfied with the impugned judgment and award passed by the Tribunal, the present appeal is preferred by the claimant/s for enhancement.
3. Learned advocate the appellant/s - claimant/s has submitted that the Tribunal has committed an error in not properly calculating the amount of compensation. It is submitted that amount of award is on lower side as the Tribunal has not properly considered the various aspects; like income as well as prospective income of the deceased, loss of consortium, funeral expenses and loss of estate, deduction towards personal expenses, multiplier, and family circumstances, etc. At the outset, he has relied upon the decision of the Hon'ble Apex Court in the case of State of Haryana vs. Jasbir Kaur and Others reported in AIR 2003 SC 3696, and the decision of this Court in the cases of (i) Rajasthan State Road Transport Corporation vs. Karsanbhai Virjibhai Ramani reported in 2022 (0) AIJEL-HC 243606, (ii) Patel Alpaben Yogeshkumar vs. Jadeja Bhanvarsinh Umedsinh reported in 2023 (0) AIJEL-HC 247154, and (iii) First Appeal No.1860 of 2016 dated 01.08.2024. In view of this, it is submitted that the Tribunal has committed error in considering the income of the deceased, as the deceased was doing driving and agriculture work, and thereby, earning Rs.4,000/-. Hence, monthly income of the injured Rs.4,000/- is required to be considered. It is further submitted that looking to the age of the deceased and keeping in view the ratio laid down by the Hon'ble Apex Court in the case of National Insurance Company Limited versus Pranay Shethi reported in (2017) 16 SCC 680, 10% income should be added towards prospective income of the deceased. He has Page 3 of 11 Downloaded on : Wed Aug 14 20:55:31 IST 2024 NEUTRAL CITATION C/FA/1290/2009 JUDGMENT DATED: 12/08/2024 undefined submitted that in view the decision of Hon'ble Apex Court in the Sarla Verma versus Delhi Transport Corporation reported in (2009) 6 SCC 121, multiplier should be 11. It is also submitted that the Tribunal has committed an error by awarding meager compensation under the head of loss of estate and funeral expenses, which should be more in view of decisions of Hon'ble Apex Court in the case of : (i) Magma General Insurance Company Limited versus Nanu Ram and others reported in (2018) 18 SCC 130 (ii) New India Assurance Co. Ltd. v. Somwati and others, reported in 2020 (9) SCC 644 and (iii) United India Insurance Co. Ltd., versus Satinder Kaur @ Satwinder Kaur reported in (2021) 11 SCC 780. It is further submitted that the deceased was married and therefore, he has left the dependents in the family behind him. Therefore, the Tribunal has committed error by not properly awarding compensation under the head of loss of consortium. It is submitted that under other heads except above, the Tribunal has rightly considered the amount of compensation. It is submitted that the compensation is required to be enhanced by modifying the award impugned accordingly and this appeal may be allowed.
4. Per contra, learned advocates for contesting respondent Nos.2 and 4 - insurance companies have submitted that the impugned judgment and award passed by the Tribunal is just and proper. Learned advocate for the respondent No.2 has relied upon the decision of the Hon'ble Apex Court in the case of Nanu Ram Alias Chuhru Ram (Supra), more particularly, paragraph Nos.8.7.1. to 8.7.7. are relevant, and has submitted that considering the minimum wages prevailed in the year of accident, Rs.2,250/- income of the deceased can be considered. It is further submitted by them that the Page 4 of 11 Downloaded on : Wed Aug 14 20:55:31 IST 2024 NEUTRAL CITATION C/FA/1290/2009 JUDGMENT DATED: 12/08/2024 undefined judgment and awarded passed by the Tribunal is just and proper. It is also submitted that under the head of loss of estate and funeral expenses, the Tribunal has rightly awarded compensation. It is also submitted that under the head of loss of consortium, the Tribunal has considered proper compensation. However, from the submissions made by learned advocate for the appellant/s that the Tribunal has committed certain errors, on this aspect, learned advocates for the respondent/s has submitted that if this Court feels that there is some error in calculation of the amount in view of settled position of law, in awarding compensation by the Tribunal, then the Court may pass appropriate order, in the interest of justice. It is submitted that this appeal may be dismissed and no interference be made by this Court.
5. It is noteworthy to mention that the provisions of the Motor Vehicles Act, 1988 which gives paramount importance to the concept of 'just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the Motor Vehicles Act deals with the concept of 'just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the claimant/s. At the outset, I have considering the decision cited at the bar by learned advocate for the appellant. The judgments cited at the bar by learned advocate for the appellant is helpful to the facts of the present case.
6.1 I have considered the submissions made by the rival parties. I Page 5 of 11 Downloaded on : Wed Aug 14 20:55:31 IST 2024 NEUTRAL CITATION C/FA/1290/2009 JUDGMENT DATED: 12/08/2024 undefined have perused the record and proceedings of the Tribunal. I have gone through the impugned judgment and award passed by the Tribunal. It is noted that the claimant has by and large claimed enhancement towards income as well as prospective income of the deceased, loss of consortium, funeral expenses and loss of estate, deduction towards personal expenses, multiplier, and family circumstances, etc. At the outset, it is fruitful to refer the decision of the Hon'ble Apex Court relied by learned advocate for the respondent No.2 in the case of Nanu Ram Alias Chuhru Ram (Supra), more particularly, paragraph Nos.8.7.1. to 8.7.7. are relevant, as under:
"8.7.1. In legal parlance, "consortium" is a compendious term which encompasses 'spousal consortium', 'parental consortium', and 'filial consortium'.
8.7.2. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse.
8.7.3. Spousal consortium is generally defined as rights pertaining to the relationship of a husbandwife which allows compensation to the surviving spouse for loss of "company, society, cooperation, affection, and aid of the other in every conjugal relation."
8.7.4. Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training."
8.7.5. Filial consortium is the right of the parents to Page 6 of 11 Downloaded on : Wed Aug 14 20:55:31 IST 2024 NEUTRAL CITATION C/FA/1290/2009 JUDGMENT DATED: 12/08/2024 undefined compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.
8.7.6. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions worldover have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.
8.7.7. The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium.
6.2 Considering the decision of the Hon'ble Apex Court in the case of Jasbir Kaur and Others (supra), and the decision of this Court in the cases of (i) Karsanbhai Virjibhai Ramani (supra), (ii) Patel Alpaben Yogeshkumar (supra), and (iii) First Appeal No.1860 of 2016 dated 01.08.2024, the Tribunal has committed error in considering the income of the deceased, as the deceased was doing driving and agriculture work, and was holding the agricultural land in the year 2003, and thereby, earning Rs.4,000/-. Hence, monthly income of the injured Rs.4,000/- is required to be considered.
Page 7 of 11 Downloaded on : Wed Aug 14 20:55:31 IST 2024NEUTRAL CITATION C/FA/1290/2009 JUDGMENT DATED: 12/08/2024 undefined Therefore, the monthly income of the deceased would be calculated as Rs.4,000/- per month. Furthermore, looking to the age of the deceased at the time of accident, i.e. 55 years and considering the decision of the Hon'ble Apex Court in the case of Pranay Shethi (supra), 10% rise should be added as prospective income. Therefore, it would come to Rs.4,400/- per month income of the deceased. Further, considering the decision of Hon'ble Apex Court in the case of Sarla Verma (supra) and Pranay Shethi (supra), 1/3 would be the deduction towards personal expense, which is rightly considered by the Tribunal. Therefore, it would come to Rs.2,933.33/- per month multiplied by 12 months (annual income) and further multiplied by 11 multiplier keeping in view the decision of Hon'ble Apex Court in the case of Sarla Verma (supra), it would come to Rs.3,87,200/- as loss of dependency benefits, which should be awarded by the Tribunal.
6.3 Further, under the head of loss of consortium, the Tribunal has awarded Rs.10,000/- only, which should be on higher side. It is not in dispute that there are six dependents in the family. In view of the decisions of Hon'ble Apex Court in the cases of : (i) Magma General Insurance Company Limited versus Nanu Ram and others reported in (2018) 18 SCC 130 (ii) New India Assurance Co. Ltd. v. Somwati and others, reported in 2020 (9) SCC 644 and (iii) United India Insurance Co. Ltd., versus Satinder Kaur @ Satwinder Kaur reported in (2021) 11 SCC 780, under the head of loss of consortium, Rs.48,400/- each (Rs.40,000/- and rise of 10%) would be proper to award, therefore, Rs.48,400/- x 6 dependents = Rs.2,42,000/- would be the compensation under the head of loss of consortium.
Page 8 of 11 Downloaded on : Wed Aug 14 20:55:31 IST 2024NEUTRAL CITATION C/FA/1290/2009 JUDGMENT DATED: 12/08/2024 undefined 6.4 Further, under the head of loss of estate and funeral expenses, if we award Rs.18,150/- each, would be the just and proper compensation, considering the decisions of Hon'ble Apex Court in the case of Magma General Insurance Company Limited (supra). Furthermore, under other heads except the above, the amount awarded by the Tribunal is not disputed by learned advocate for the appellant/s, otherwise also, the Tribunal has rightly considered the amount under those heads.
6.5 Therefore, total compensation would be as under, which the claimant/s is/are entitled to get.
Particulars Amount (Rs.)
Loss of dependency benefits 3,87,200/-
Loss of estate 18,150/-
Funeral expenses 18,150/-
Loss of consortium 2,42,000/-
Total... 6,65,500/-
Less : Amount which is 1,31,000/-
already awarded
Additional amount which 5,34,500/-
is awarded
7. Therefore, I hold that the claimant/s are entitled to get the total amount of compensation of Rs.6,65,500/- with 7.5% p.a. interest from the date of filing the claim petition till its realisation, which would meet the ends of justice. Rest of the direction(s) of the Tribunal shall remain same. The Tribunal has already awarded Page 9 of 11 Downloaded on : Wed Aug 14 20:55:31 IST 2024 NEUTRAL CITATION C/FA/1290/2009 JUDGMENT DATED: 12/08/2024 undefined Rs.1,31,000/- and, therefore, remaining amount of Rs.5,34,500/- would be the enhanced amount of compensation payable to the claimant/s.
8. For the reasons recorded above, the following order is passed.
8.1 The present appeal is allowed to the aforesaid extent.
8.2 The impugned judgment and award dated 19.07.2007 passed by the Motor Accident Claims Tribunal (Aux.), Mehsana in Motor Accident Claim Petition No.919 of 2003 is modified to the aforesaid extent.
8.3 The respondent No.2 - Insurance Company is directed to deposit the enhanced amount Rs.5,34,500/- with 7.5% p.a. interest from the date of claim petition till its realisation before the concerned Tribunal, within a period of six weeks from the date of receipt of this order, and thenafter, shall recover the 30% of the entire awarded amount from the respondent No.4 - insurance company.
8.4 The Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon, if any, to the claimant/s, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure.
8.5 While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law.
Page 10 of 11 Downloaded on : Wed Aug 14 20:55:31 IST 2024NEUTRAL CITATION C/FA/1290/2009 JUDGMENT DATED: 12/08/2024 undefined 8.6 Record and proceedings be sent back to the concerned Tribunal, forthwith.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 11 of 11 Downloaded on : Wed Aug 14 20:55:31 IST 2024